Search and the implied licence to enter private property

In criminal law the facts can be simple but the law complex. This is why criminal lawyers appear to some observers to be vastly more intelligent than their colleagues who practise in civil law.

The implied licence to enter private property can give rise to differences of judicial opinion on whether a police officer carried out a search and if so whether it was done lawfully.

In Florida v Jardines, USSC No 11-564 the Court split 5-4 on the lawfulness of a search where an officer had taken a drug dog on a lead to the front door of a house intending to knock and speak to the occupier. The officer was acting on information that drug offending was occurring on the property. The dog indicated the smell of drugs and the officer left the property with the dog and obtained a warrant to search the address. When the warrant was executed evidence of cannabis offending was found.

The opinion of the Court, delivered by Scalia J, was that the officer with the dog had carried out a search in breach of the implied licence to enter and knock. The main grounds for this decision were trespass, but in a concurring opinion Kagan J, joined by Ginsburg and Sotomayor JJ, the alternative ground of breach of privacy was advanced as an easier answer. The dissent was delivered by Alito J, joined by Roberts CJ, Kennedy and Breyer JJ.

The facts invite consideration of a variety of issues:

• What was the significance of the presence of the dog?
  
• Do the police have common law powers that ordinary members of the public do not?
  
• Should lawfulness here be determined by considerations of trespass or of privacy?
  

Alito J denied that the implied licence that qualifies trespass had ever been held to have prevented an officer bringing a dog onto the property. Obviously that point is not particularly significant because the law hasn't yet anticipated every possible occurrence. Absence of authority for a proposition is not authority against the proposition, although it can suggest that the conduct has previously been thought reasonable.

Alito J pointed out that the law has never attempted to distinguish categories of visitors as being welcome and therefore within the implied licence or unwelcome and therefore outside the licence. Any visitor with a lawful purpose may enter at a reasonable time of day and walk on the path that typically approaches the front door and, without lingering, knock on the door in an attempt to speak to an occupant. The police may do this too, and they do not search by simply approaching the door to knock and talk, even where the intention is to talk with a view to obtaining evidence against an occupier.

And if, continued Alito J, the officer in approaching the door with that intention, happened to smell evidence of drug offending, that information is not obtained outside the scope of the implied licence. So too for things seen and heard from a lawful vantage point. The officer is permitted to smell, hear and see what any person might detect on a lawful approach to the front door (citing State v Cada, 129 Idaho 224, at 232, 923 P. 2d 469 at 477).

Given that the officer could use his own nose, continued Alito J, what was wrong with him using the dog? There was no authority prohibiting the officer from having the dog with him, and indeed there has been no case in 800 years in which a tracking dog has been held to create a trespass. So, concluded the dissent, trespass is not a proper basis for holding the present conduct unlawful.

Nor, continued Alito J, could the occupiers have any reasonable expectation of privacy in relation to odours emanating from unlawful activities and reaching places where members of the public may lawfully stand. This is not the same as the use of new technology to enhance the sensing of information. It would hamper legitimate law enforcement activity if the dog's nose were to be equated with new technology.

However the dissent must now be regarded as incorrect in the jurisdictions in which Jardines applies. This is not to say that elsewhere the dissent's view of the law should not be accepted. Although the Court was concerned with constitutional interpretation, the origins of the law against unreasonable search and seizure are in the common law of England. While originating in the customs of England, the common law can develop differently according to social needs in different places. And a change in the common law brought about by decisions of the European Court of Human Rights in relation to judicial decisions made in Britain (for example as occurred in Malone v United Kingdom [1984] ECHR 10, overturning Malone v Metropolitan Police Commissioner [1979] Ch 344) does not necessarily affect the common law of another country. So although Jardines is not a "common law" decision in the narrow sense that the term "common law" is used in the United States, it is of interest wherever the meaning of search and the scope of police powers in relation to private property have to be decided.

The opinion of the Court in Jardines therefore is not binding but is "of interest" to courts outside the jurisdiction in which it applies. Scalia J, after deciding that the investigation took place in a constitutionally protected area, turned to consider whether the intrusion was authorised. Inevitably the relevant common law decision, known to the Founders and repeating an ancient custom of the realm, is Entick v Carrington, 2 Wils. K.B. 275, 95 ER 807 (K.B. 1765). As every lawyer knows, or once knew, this case reminds us that "our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave."

This rule, underlying the Fourth Amendment, raised the question whether a licence to enter could be implied in the circumstances of this case. Scalia J held that introducing a trained police dog to explore the area around the home was not customarily recognised as being within an implied licence to enter. The scope of the licence to enter and knock on the front door was limited both to a particular area and to a particular purpose. There was no invitation to the officer to enter and conduct a search. It was not the dog that was the problem, so much as the purpose of the entry. The common law would not licence a person who, remaining on the path to the door, used binoculars to peer through a window.

The Fourth Amendment has a property-based interpretation, supplemented in appropriate cases with a privacy based interpretation. Where a case can be decided on property-based grounds there is no need to add an inquiry about whether the defendant had a reasonable expectation of privacy. Here, reasoned Scalia J, the use of the dog and questions about privacy interests in respect of odours emanating from illegal activities on the property, were privacy issues and did not need to be considered because the case turned on property interests. The point was that the officer entered to conduct a search and that was outside the implied licence. Since there had been an unauthorised search, the Court upheld the Supreme Court of Florida's decision that the trial judge had correctly excluded the evidence obtained through entry with the dog and execution of the improperly obtained search warrant.

It is not inevitable that issues concerning searches have to be analysed in terms of first property rights, then if necessary, privacy rights. The reverse can also work, as is illustrated by the concurring opinion in Jardines, and, for an example from further afield, in Hamed v R [2011] NZSC 101, at [163]. Hamed also contains some controversial remarks from the Chief Justice about whether the police have common law powers that ordinary people do not have (she held that they don't), and although the other members of the Court did not directly address that point the Court of Appeal has subsequently decided – although in my view by a bit of a stretch - that Hamed is consistent with the view that the police do have additional common law powers: Lorigan v R [2012] NZCA 264. The consequences of illegality may also differ between jurisdictions, and may be determined by legislation. The interpretation in Hamed of the relevant statute was discussed here on 19 September 2011. Some attempt has been made in New Zealand to codify the law of search: Search and Surveillance Act 2012. In circumstances like those in Jardines the relevant section would be s 20, but this does not specify the bounds of an implied licence. The consequences of a breach of an implied licence are left to be determined in the same way as before the Act (which is due to come fully into force by 1 April 2014, if not earlier by Order in Council). The position is summarised in Adams on Criminal Law – Rights and Powers, para SS20.05:

Where the constable's reasonable suspicion as to the commission of an offence has been derived from the unlawful actions of the police, the exercise of the warrantless search power may be unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990: see, for example, R v Hjelmstrom (2003) 20 CRNZ 208 (CA) (consent to presence on property obtained through misleading the occupant). See also Lord v Police (1998) 5 HRNZ 92 (HC). However, even where the police presence at a place is without lawful authority, drugs seized in the course of the exercise of the search power on reasonable grounds may be admissible under s 30 of the Evidence Act 2006: see, for example, Eruera v R [2012] NZCA 288 (cannabis seizure in course of executing invalid search warrant for stolen property). For an example of evidential material discovered in the course of an unlawful search being held to be inadmissible, see R v Yeh [2007] NZCA 580.

This new legislation gives no guidance to the police about what they may do when they enter private property subject to an implied licence.

Your own jurisdiction may well have the same uncertainties as mine. To what extent do common law powers exist in the context of legislation? Do the police have greater common law powers than ordinary members of the public regarding entry onto private property? What are the terms of any implied licence to enter that apply to police officers? Does the characterisation of an entry as a search depend on privacy or on property rights? What sort of detection devices may be used in relation to private property pursuant to the common law?

People unfamiliar with the law's delays might be surprised that these questions can remain after 800 years. Good legal advice would be to set aside a further 800 years for the answers to emerge.

Informed advice on consequences of plea: changing perceptions of fairness

Sometimes when judges make new rules they apply retrospectively to cases that have already been decided. Obviously this could cause chaos, so there are limitations that confine the situations in which this retrospectivity can apply. In the United States, as we saw here on 21 February 2008, the rule in Teague v Lane, 489 U.S. 228 (1989) recognises two exceptions to the general rule that decisions do not apply retrospectively: where laws proscribing conduct have been declared unconstitutional, and where new rules concern the fairness of trials. Teague has been applied recently in Chaidez v United States
USSC No 11-820, 20 February 2013.

In Chaidez the appellant sought application to her case of a rule that had been declared by the Supreme Court after the proceedings in her trial had been finalised. The rule is that counsel must advise a non-citizen client of the immigration status implications of a plea of guilty: Padilla v Kentucky, 559 U.S. 356 (2010). Ms Chaidez had not been advised that her permanent residency would be revoked and that she faced mandatory removal as a result of her guilty pleas and convictions for mail fraud charges that were classified as aggravated felonies.

The Court held that the Padilla rule did not apply retrospectively.

This rather surprising result arose from what the majority regarded as the first issue which was whether advice about deportation came within the Sixth Amendment right to counsel. Does the right to counsel include the right to advice about a collateral matter – the consequences of a conviction on immigration status? Before Padilla the states had almost unanimously held that it does not. Padilla created a new rule for most jurisdictions. This new rule did not apply to Ms Chaidez's case because (the opinion of the Court is not clear on this but one can infer the reason) it did not, in terms of Teague, concern the fairness of the criminal proceedings against her.

Sotomayor J, joined by Ginsburg J, dissented. They reasoned that Padilla did not create a new rule but it merely applied the established rule that legal representation must be to a standard consistent with prevailing professional norms (Strickland v Washington, 466 U.S. 668 (1984)). Those norms had developed to require advice about the immigration implications of a guilty plea. Padilla did not apply a direct-or-collateral consequence approach to the Sixth Amendment, and Ms Chaidez's legal representation had fallen short of the required standard.

Outside the United States a retrospectivity issue of the kind that arose in Chaidez would probably be resolved by asking whether the defendant should have been advised of the consequences of conviction, including deportation. The rules of professional conduct should indicate the extent of a lawyer's obligation to advise a client of the consequences of a decision. For example, the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 [NZ], rule 13.13.1:

"When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client's instructions."

A retrospectivity issue would arise if standards had changed so that although advice on immigration status might not reasonably have been required to have been given at the time the client entered a guilty plea, it would be required now. This is an artificial issue here, as it has long been recognised that such advice must be given. But if there had been a change in this, so that "all relevant implications" now include the effect of a conviction on immigration status, would all defendants who had previously entered guilty pleas without that advice now be able to have their convictions quashed and their pleas re-taken?

While it is true that standards of fairness change over time, defendants who are still around to complain of treatment that by current standards was unfair are likely to have a remedy. See Krishna v The State (Trinidad and Tobago) [2011] UKPC 18, discussed here on 12 July 2011.

Jeopardy from silly acquittals?

"To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty"

This from Green v United States, 355 U.S. 184, 188 (1957) was quoted in Evans v Michigan
USSC No 11-1327, 20 February 2013. Here an acquittal had been directed at trial although on grounds that were plainly wrong. The acquittal was nevertheless valid and effective to invoke the rule against double jeopardy.

Evans highlights the distinction between procedural terminations of trials and findings on the merits. A procedural termination is not an acquittal because it is not a finding on the merits. A procedural termination avoids the defendant being in jeopardy of a conviction. A properly granted mistrial does not give rise to an expectation of finality.

In Evans the judge ruled at the close of the prosecution case that the evidence so far adduced was insufficient to convict the defendant. The judge wrongly thought that the relevant law of arson required proof that a particular building was not a dwelling, and directed a verdict of not guilty accordingly. This was held to have been a ruling on the merits and a bar to a retrial.

You can see that this is a bit silly. We saw an analogous sort of silliness in R v Taylor [2008] NZCA 558, discussed here on 18 December 2008. Taylor was applied in Connolly v R [2010] NZCA 129 at [65]-[66].

It is silly because it turns on the stage of a trial at which an objection is taken: has jeopardy of conviction arisen? If the prosecution case has been closed, then yes, there is jeopardy, as in Evans. But what if, after the jury had been selected and the trial begun, the defence had objected that on the basis of the evidence that the prosecutor intended to call there was no proof of an element of the offence, and before any evidence was called the judge ruled that the prosecutor needed that evidence, and the prosecutor confirmed it would not be adduced, and the judge then directed an acquittal? Would jeopardy have arisen? Is this a procedural termination? The position as it would inevitably be if the prosecution case proceeded to closure is being anticipated. Why wait until closure of the case? Yet the authorities suggest that this would be a procedural termination, not a decision on the merits.

Is there a sensible policy behind treating directions that are obviously wrong in law as nevertheless giving rise to legally effective acquittals? If there is, is it consistent with whatever policy might justify distinguishing between procedural dismissals and rulings on the merits?

Sniffer dog reliability and probable cause for search

There were times when Aldo the drug dog was not on his best form. He was trained to detect the presence of particular drugs, but sometimes he would say one or more of them was there when that was wrong, although on the occasion that concerned the United States Supreme Court there were other drugs present: Florida v Harris, USSC No 11-817, 19 February 2013.

What was the relevance of a record of false positives to the existence of probable cause for a search based on Aldo's indication?

Probable cause requires the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act": Illinois v Gates, 462 U.S. 213. The totality of the circumstances must be looked at, and rigid rules, bright line tests and mechanistic enquiries are inappropriate, according to Gates.

The Court, in a unanimous opinion delivered by Kagan J, considered that field-performance records may not capture a dog's false negatives or may markedly overstate a dog's false positives. This is because in the field – that is, in real-world performance – a dog's failure to detect drugs will often not be followed by a search and so the failure will go unrecorded. Similarly, an apparent false positive may in reality be a correct response to a residual odour or a small amount of drug that the officer failed to find. But evidence of the dog's reliability in a controlled setting, where errors are known, can provide sufficient reason to trust the dog's alert in the field.

All the evidence needs to be evaluated, said the Court. Here the facts supported a finding of probable cause because the defence had not contested the State's evidence that Aldo performed reliably in controlled settings. But where the defence did challenge the evidence of the dog's reliability the court should assess all the evidence and ask whether all the facts, viewed through the lens of common sense, would make a reasonably prudent person think evidence of offending would be found. "A sniff is up to snuff when it meets that test." Haw haw.

Here the problem with the Florida Supreme Court's approach was that:

"No matter how much other proof the State offers of the dog's reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis."

There may be other indicia of reliability, and absence of one sort may be compensated for by presence of another.

Because the defendant had not raised issues of Aldo's reliability at trial, he could not do so for the first time on this appeal.

"As the case came to the trial court, Aldo had successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises. Viewed alone, that training record—with or without the prior certification—sufficed to establish Aldo's reliability."

Good doggie.

Secondary participation in conspiracy

For a compellingly logical analysis of secondary participation in conspiracy, see R v JF, 2013 SCC 12 (1 March 2013).

Although the form of secondary liability considered in JF is aiding or abetting under s 21 of the Criminal Code, the same reasoning would apply to the other forms of participation that are usually included as constituting secondary participation: inciting, counselling or procuring.

The focus is on the actus reus of conspiracy, which is an agreement to commit an offence. The actus reus for secondary liability is aiding, abetting, inciting, counselling or procuring the formation of the agreement. Because the agreement may continue up to the attainment of its unlawful object, a person may join the agreement after its initial formation. A person who aids, abets, counsels or procures that person to join at that later stage commits the actus reus of secondary participation in the conspiracy.

A person who aids (etc) a conspirator in the attaining of the object of the conspiracy is not for that fact alone a conspirator, because the attaining of the object of the conspiracy is not the actus reus of conspiracy. But that evidence will usually support an inference of assistance in the entering into of the agreement by the person who is aided (etc), and if that inference is permissible in the circumstances then it is evidence of the actus reus of the aider's (etc) secondary participation.

This decision removes doubts that had existed in Canada over whether liability could arise from the mere assistance of a conspirator in the furtherance of the conspiracy. The approach in R v McNamara (No 1) (1981) 56 CCC(2d) 193 (Ontario CA) was not followed.

Old problems with new evidence

Whether failure to call evidence at trial should be grounds for quashing a conviction is an issue that often has to be decided in appeals, as it was in Taylor v The Queen (Jamaica) [2013] UKPC 8 (14 March 2013).

Here the Board split, Lord Kerr dissenting, on the application of the law to the facts. There was no difference of opinion on what the law is.

It was unnecessary to decide whether counsel were at fault in not calling the relevant witness, because the issue is the impact of the absence of the evidence on the verdict: Lord Hope for the majority at [13], applying Lord Carswell in Teeluck v State of Trinidad and Tobago [2005] UKPC 14 at [39], (discussed here on 1 April 2005). The test is whether, after taking all the circumstances of the trial into account, there is a real possibility of a different outcome: Taylor at [20]. Might the evidence reasonably have affected the jury's decision to convict? The majority held that there was no reasonable possibility in this case that the jury would have arrived at a different verdict.

Lord Kerr said that the requirement of a real possibility of a different verdict signifies no more than an acceptance that one is left in doubt as to the safety of the conviction [39]. This, he added (more obscurely), was not a matter for one side or the other to take on the burden of showing, but instead is a matter that must be decided in the round. The question of the effect of the new evidence on the safety of the verdict is for the appellate court to decide for itself; the court does not decide what effect the evidence might have had on the jury: [43], applying Dial v State of Trinidad and Tobago [2005] UKPC 4 (noted here on 17 February 2005). Further, the question is not whether there was evidence on which the jury might reasonably convict, but rather whether there was evidence on which it might reasonably decline to do so: [45], applying Bain v The Queen (New Zealand) [2007] UKPC 33 (discussed here on 11 May 2007).

Therefore it is in this sense, said Lord Kerr, that the question, where new evidence has come to light, is whether the evidence might reasonably have led to an acquittal [46]. He proceeded to analyse the case and reached a different conclusion to that of the majority.

The application of this law is notoriously difficult for appellate courts, and it is not unusual to find dissenting judgments. One also finds dissents in appeals which have to consider, not the failure to call evidence at trial, but the wrongful adducing of evidence at trial. A spectacular example is Howse v R [2005] UKPC 31, discussed here on 23 July 2005. The wrongful adducing of evidence raises the substantive question of the fairness of the trial, and the inevitability of a guilty verdict is not the touchstone, for even a guilty defendant is entitled to a fair trial.

Trial fairness is also raised by a failure to adduce evidence and we might wonder whether the criterion for quashing a conviction in such a case should be whether the absence of the evidence might have undermined the fact-finder's impartiality: could inappropriate weight have been given to critical prosecution evidence because of the absence of the evidence?

Attribution and the actus reus

Sometimes where there is more than one defendant alleged to be a principal offender (that is, one who personally does the actus reus with the required mens rea) it is difficult to say who did what. This is particularly so where there are a lot of eye witnesses, for it is normal to find that everyone has a different account of what happened. There may be no doubt that an actus reus occurred, but who did what?

This was considered in Huynh v The Queen [2013] HCA 6 (13 March 2013). "Joint enterprise" liability of this kind (which is not to be confused with the term joint enterprise in the context of an exception to the rule against hearsay, nor with similar terminology that is sometimes used in relation to extended secondary liability) depends on proof that the defendant was a party to an agreement to commit the offence that was committed and in addition - for this is not mere conspiracy - that the defendant participated in the offending. Presence when the offending occurred can be sufficient to prove participation. The circumstances may also, as they were in this case, be such that the defendant's presence supports an inference that it was pursuant to the required agreement.

This common law solution to the determination of liability as a principal offender where the facts are vague has a parallel in the interpretation of the statutory criterion, for liability as a principal, of being a person "who actually commits the offence": see for example s 66(1)(a) of the Crimes Act 1961 [NZ]. There is an appeal case, the name and details of which seem still to be subject to a suppression of publication order, so I give only the citation for people with access to databases on which publication is permitted: "[2010] NZCA 256". In that case there were several steps needed to complete the actus reus and several defendants were allegedly involved, but no one person did all the steps. In relation to any given defendant, the prosecutor had to prove that that defendant did any of the required steps, that one or more other of the defendants did the other necessary steps, and that the defendant under consideration had mens rea. This was called a distributive application of s 66(1)(a).

Is the distributive approach the same as the joint enterprise liability illustrated by Huynh? Probably yes, although particular facts may produce different results. That would depend on what inference could be drawn from a defendant's presence when another defendant completed a step in the actus reus. The common element is participation in the offending in circumstances where the acts of one defendant are attributed to another.

When will this attribution occur? Policy considerations strongly favour public safety, but there should be clear limits on attribution. For a controversial approach see R v Gnango [2011] UKSC 59, [2012] 1 AC 827, discussed here on 18 December 2011, where the majority favoured liability as a principal for murder where the defendant was in a gunfight with the person who, missing him, shot a bystander.

Guidance was given to judges in both Huynh and "[2010] NZCA 256" on how to handle complex cases, where there are multiple defendants and different forms of alleged liability. Huynh stresses the importance of getting to the real issue in the case, so that the judge can give a focused direction on the law. The New Zealand case at [26] invites judges, when faced with disagreement from counsel on the structure and content of a proposed question trail for the jury, to make a minute recording the nature of the dispute and the judge's reasons for adopting the trail ultimately used.

Essential reading for trial lawyers

Thanks to Peter Tillers for bringing attention to a paper on DNA evidence that is essential reading for trial lawyers, particularly defence counsel: William C Thompson, Laurence D Mueller, and Dan E Krane, "Forensic DNA Statistics: Still Controversial in Some Cases".

Amending the Criminal Procedure Act 2011 [NZ]

Some tweaking of the Criminal Procedure Act 2011 has been found to be necessary. My submissions on the Criminal Procedure Legislation Bill are here.

Contempt, imprisonment and appeals

A few interesting remarks on imprisonment for contempt and on sentence appeals generally were made in B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4 (30 January 2013).

When dealing with a contemnor and considering the option of committal to prison, the court needs to assess two things, coercive and penal:

"[14] ... Committal is appropriate where it can reasonably be expected that this will induce the contemnor to purge his contempt (the coercive effect). It is also appropriate to punish contempt of a court's order (the penal element). Frequently both elements will underlie a committal order. Where there is reason to believe that committal will secure compliance with a court's order, the fact that the person subject to it has already substantial restrictions on his liberty is immaterial. Where it is required in order to properly punish the contemnor, the loss of residual liberty is unlikely to weigh heavily against the making of the order."

The contemnor must be punished for misbehaviour and also must be induced to behave properly.

The other topic considered here is when an appellate court should correct a sentence itself instead of remitting the case to the lower court for it to impose an appropriate sentence:

"[11] Where an appellate court has concluded that the basis on which the decision of the lower court to sentence someone for contempt is flawed, it does not follow that the sentence chosen by the lower court is inevitably wrong. It may be an entirely correct sentence but for different reasons from those articulated by the original sentencing court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision to sentence was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, a de novo assessment must indeed occur. A fresh look at the circumstances material to the question of whether imprisonment is the right disposal should take place in light of the correct understanding of those circumstances.

"[12] It is not essential, however, even as a matter of generality, that the fresh look be undertaken by the original sentencing court. If it is sufficiently clear to the appellate court that a sentence of imprisonment is appropriate in light of its revised view of the relevant facts, it is not required as a matter of principle or of practice that the matter be remitted to the court which first imposed the sentence. As Jackson LJ said in JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 para 60, where an appellate court is seised of the case and in possession of all relevant facts, the proper course is for the appellate court to determine what the proper sentence for contempt should be on the basis of the true facts. Where, of course, a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by a first instance court, remittal will be suitable. This is not such a case. The Court of Appeal was able to evaluate the medical evidence and reach reliable conclusions on its significance. It could decide what the appropriate sentence should be and it was right to do so."

And on the topic of contempt of court, there is a particularly interesting discussion of the common law powers by Professor ATH Smith, "Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper", 18 April 2011, and also in Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767, (2010) 24 CRNZ 748 (SC).

Withdrawal from offending at common law – evidential and legal burdens

The burden and standard of proof of the affirmative defence of limitation, and some aspects of the affirmative defence of withdrawal, were considered in Smith v United States, USSC No 11-8976, 9 January 2013.

Subject to any statutory definition to the contrary, an affirmative defence is one that affirms that even though the actus reus and the mens rea may have been proved, nevertheless the defendant is not guilty.

Examples of affirmative defences are infancy, insanity, self-defence, coercion, and limitation.
This last one, limitation, amounts to the defendant saying, "Yes, I committed the offence, but that was so long ago that the law prevents me being charged." Not all offences are limited in this way, and limitation periods are established by legislation. Terminology can be a bit confusing, so when I say the offence was inside the limitation period that means the defendant can be prosecuted, and when I say it was outside the limitation period that means the defendant cannot be prosecuted.

In Smith the relevant offences were conspiracies to commit various serious offences. A limitation period applied. The defendant relied on the limitation period, saying his participation in the conspiracies had ceased outside that period because he had withdrawn his participation. At trial the issue of withdrawal only arose as a result of a question from the jury, and the judge gave a direction that the defendant had to prove withdrawal to the standard of the balance of probabilities. The Supreme Court held that this did not violate the Due Process clause.

Placing the burden of proof of withdrawal on the defendant did not violate the right to be presumed innocent because, as the Court had said in Patterson v New York, 432 U.S. 197 (1977),

"This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845)."

Of course legislatures could change that rule, as indeed most have, so that it is now usual for defences, whether they be affirmative or not, to be for the defendant to raise but for the prosecutor to disprove. The defendant under this usual approach has only the "evidential burden" of pointing to some evidence sufficient to put the existence of the defence into issue.

But in the eighteenth century, as Blackstone described in his Commentaries, the defendant had to prove the defence. In Smith the Court, in its unanimous opinion delivered by Scalia J (who did not on this occasion have the opportunity to indulge his appetite for the purple prose of vigorous dissent), pointed out that the burden on the defence to establish withdrawal on the balance of probabilities was justified because it was the defendant who would have the relevant evidence on the issue. The prosecutor could not be expected to prove a negative. The defence here did not seek to negative any element of the offence that the prosecutor had to prove.

To negative his participation in the conspiracies the defendant had to prove that he took steps "to dissociate from his confederates". The conspiracy was a continuing offence, and the prosecutor had proved that it continued inside the limitation period, but the prosecutor could not be expected to prove that the defendant did not withdraw before then. Participation in the conspiracy continues even if the defendant is inactive after joining it, until he withdraws or until the conspiracy terminates.

I should emphasise that the law is not necessarily the same outside the United States. The common law has developed since the eighteenth century and legislation usually reflects those developments: a defence carries an evidential burden for the defendant and then a legal burden of disproof on the prosecutor. The usual exception is insanity, where the legal burden is on the defendant to the standard of the balance of probabilities. But where the defence of withdrawal is still a common law defence the policy of placing the legal burden on the defendant, on the issue of the taking of sufficient steps to withdraw, may need some consideration.

Withdrawal cannot be effective if the offending cannot be undone. A conspiracy is complete upon agreement, and it continues while that agreement exists even if the parties to it change. Once the defendant has entered the conspiracy it is too late for him to withdraw. And in relation to attempts, it is too late to withdraw once a sufficiently proximate act has been committed. And incitement is committed when the incitement occurs – it is too late to withdraw after then. But liability can arise from assistance or encouragement, and it may be possible for the defendant to withdraw his assistance and encouragement. Liability can also arise from participation in a common purpose, and a defendant may be able to withdraw by negativing his participation. More than verbal withdrawal may be required, for example where the defendant has provided others with equipment needed to commit an offence. Even verbal withdrawal may require more than mere dissociation, and the defendant may have to try to persuade the principal offender not to continue.

In Ngawaka v R [2004] NZCA 249 (6 October 2004) the Court of Appeal approved a statement of the law on withdrawal by Hammond J in R v Pink [2001] 2 NZLR 860:

"As a matter of legal doctrine, it seems to me that the following conditions must be met:

• First, there must in fact be a notice of withdrawal, whether by words or actions.

• Secondly, that withdrawal must be unequivocal.

• Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.

• Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party's previous actions. (See R v Menniti [1985] 1 Qd R 520.) As with any test of "reasonableness", it is impossible to divorce that consideration from the facts of a given case. The accused's actions may have been so overt and influential that positive steps must be taken by him to intercede, and prevent the crime occurring. There is at least one authority (R v Grundy [1977] Crim LR 534 (CA)) which suggests that where the accused's participation was in the form of counselling, attempts by the accused to dissuade the principal offenders from proceeding with the crime are sufficient."

Hammond J continued:

"[15] That is the law, as I understand it, in all the British Commonwealth jurisdictions. It follows that because the onus is on the Crown, where "withdrawal" is raised by a party the onus is on the Crown to negative any such "defence". The difficulty which has arisen in the cases appears to be as to the precise conditions of withdrawal which have to be in place for this doctrine to apply.

[16] A classic statement of the defence is that by Plowden in his commentary on R v Saunders and Archer (1576) 2 Plowd 473, 476; (1576) 75 ER 706, 710:

"If I command one to kill JS and before the fact done I go to him and tell him that I have repented, and expressly charge him not to kill JS and he afterwards kills him, there I shall not be accessory to this murder, because I have countermanded my first command, which in all reason shall discharge me, for the malicious mind of the accessory ought to continue to do ill until the time of the act done, or else he shall not be charged; but if he had killed JS before the time of my discharge or countermand given, I should have been accessory to the death, notwithstanding my private repentance."

[17] A more modern statement of the doctrine is to be found in the judgment of Slane JA in the Canadian appellate decision of R v Whitehouse [1941] 1 DLR 683, 685: the doctrine of withdrawal only obtains on the footing that, "where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose".

[18] That decision gave rise to some debate as to what is meant by "timely" and "effective"? What, for instance, is the position to be where timely communication is not practicable? Some jurists suggested that withdrawal by means of countermand would not then be available to the accomplice at all. On that point, the High Court of Australia in White v Ridley (1978) 52 ALJR 724 has held that the withdrawal must be sufficiently timely to be capable of being effective.

[19] That there is a doctrine of withdrawal in New Zealand law is at least implicitly accepted by the Court of Appeal in a decision cited to me by Mr Ellis – R v Wilcox [1982] 1 NZLR 191. In that case, at p.196, Sir Owen Woodhouse accepted that there was a material misdirection on the part of the trial Judge in that case, insofar as the jury had been left under the misapprehension "that any subsequent change of mind following the first step taken (the purchase of the weapons) could not be used by Wilcox as a defence".

[20] It is not possible in a trial ruling of this kind to consider at length, even if it were appropriate, the very considerable academic literature and interest which has been generated on this difficult topic. The literature includes Lanham "Accomplices and Withdrawal" (1981) 97 LQR 575; Smith, "Withdrawal from Criminal Liability for Complicity and Inchoate Offences" (1984) 12 Anglo-American Law Review 200; O'Regan, "Complicity and the Defence of Timely Counterman or Withdrawal Under the Griffith Code" (1986) 10 Criminal Law Journal 236; Marcus, "Joint Criminal Participation: Establishing Responsibility, Abandonment" (1986) 34 American Journal of Comparative Law 479. See also in New Zealand, Simester and Brookbanks, Principles of Criminal Law (1998) at para 5.1.4.4, and R v Malcolm [1951] NZLR 470 (CA).

[21] Without attempting to resolve the jurisprudential debate as to the basis of this "defence" (if a defence it be, properly so called) it seems to me that, as a matter of public policy, there should be a plea of this kind which is open to an accused. It is surely in the public interest that somebody who has contemplated criminal endeavour and changed their mind, should be able to do so. At the same time, attempting to withdraw from a crime about to happen may not in itself be sufficient, since the accomplice's prior act may have some very distinct impact on what in fact occurs. It may be that the law should look for some kind of abrogation of the influence of that act."
 

The question of who should have to prove this abrogation is also a policy matter. Hammond J has, naturally, assumed at [15] that where withdrawal is raised it is for the prosecutor to negative it, and this was applied in Pink in reaching the conclusion that the prosecutor could not establish beyond reasonable doubt that the defendant had not withdrawn. But, especially where there are technical questions about whether withdrawal is really a defence, it is not inevitable that the common law must put the legal burden of negativing it on the prosecutor.

Update: the New Zealand Supreme Court has held that withdrawal is a common law defence and that Hammond J's points in Pink need modification: Ahsin v R [2014] NZSC 153, especially at [134] per McGrath, Glazebrook and Tipping JJ.

The effect of trial delay on sentence determination

Aggravating factors at sentencing do not include delay in the proceedings if the defendant was not responsible for that delay. Nor do they necessarily include exercise of the right to put the prosecution to proof: Hassen Eid -En Rummun v The State of Mauritius (Mauritius) [2013] UKPC 6 (7 February 2013), [11], [18].

Those propositions of law depart from the usual approach to delay. It is conventional to ask, to what extent is it a mitigating factor that the defendant has been deprived of the right to a trial without undue delay, and to what extent is it a mitigating factor that the defendant has pleaded guilty?

Where there may have been a breach of a defendant's constitutional right, it is the duty of the sentencing court to examine whether any such breach should have an effect on the disposal of the case, whether or not that issue has been raised by counsel: [7]. The seriousness of the offending may be such as to outweigh the effect of the breach, but the breach is a factor that must be considered: [13].

In this case delays seem to have been largely due to a co-defendant's strategy, although there were also delays due to the unavailability of prosecution witnesses including police officers. The facts needed clarification, and the case was remitted to the Supreme Court of Mauritius, but it is implicit in the Board's approach that where a co-defendant or a prosecutor is causing delay, the defendant should object to that delay and ask that his objection be recorded, because at sentencing his attitude to the postponement of the proceedings will be closely examined: [16], applying Celine v State of Mauritius [2012] UKPC 32, and Boolell v State of Mauritius [2006] UKPC 46 (noted here 18 October 2006). But mere acquiescence in delay is not the same as actively promoting delay [17].

While there is no doubt that an early plea of guilty is a mitigating factor, courts have been careful to distinguish the absence of a mitigating factor from the presence of an aggravating factor: see for example Republic of Croatia v Snedden [2010] HCA 14 (noted here 19 May 2010). Failure to plead guilty at an early stage can result in loss of a sentence reduction, but it does not – or should not – lead to an additional penalty. This reasoning satisfies legally trained minds, but defendants can find it difficult to follow. It is, however, important not to coerce guilty pleas: Hessell v R [2010] NZSC 135 at [60]-[61], discussed here on 16 November 2010.
Here is the Board's treatment of this point [18]:

"On the question of the appellant's decision to contest the case on grounds that proved to be unfeasible, the Board considers that this factor should be treated with some caution. A defendant to any criminal charge is entitled to put the prosecuting authorities to proof of his guilt. The Board considers that the circumstances in which, by reason of a not guilty plea, a trial is delayed call for anxious scrutiny before he is penalised for such delay."

The word "penalised" here is inappropriate for legal discourse. There is a tendency to pussy-foot around points that should be stated absolutely. What do "some caution" and "anxious scrutiny" mean?

If the defendant "is entitled" to put the prosecution authorities to proof, how can exercising that entitlement result in punishment? It may result in loss of a mitigating factor, but it would be wrong to treat it as an aggravating factor. Similarly it would be wrong to treat trial delay as an aggravating factor, whereas it would be correct to treat unjustified trial delay caused by the defendant as grounds for reducing or eliminating the mitigating effects of loss of the right to a trial within a reasonable time. Or at least that is what this decision recognises.

It is unfortunate that the Board was so brief on this point. On what principled basis should a defendant be deprived of the full mitigating effect of unreasonable trial delay? The defendant has already lost the mitigating effect of an early guilty plea. The basis for mitigation arising from an early guilty plea is the pragmatic one of encouraging the saving of court time and the associated expense of trial. There is a link between the guilty plea and the saving of time and cost. On the other hand, mitigation arising from breach of the right to trial without undue delay is based on encouraging prosecution efficiency. If the prosecution process has been inefficient to the extent of being unreasonably slow, where is the link to the defendant's plea? Without judicial clarification we can properly wonder whether the Board is correct to recognise that a plea of not guilty may reduce the defendant's remedy for unreasonable delay by the prosecution.

Not a long vacation

And now a quick look at some decisions of the Supreme Court of Canada, the delivery of which reminds us that in the Northern Hemisphere it is not the season for long vacations.

In R v Manning, 2013 SCC 1 (17 January 2013) legislation required a judge to take into account particular circumstances relating to the offence and the offender, but the judge applied also the broad principles of sentencing, when deciding whether to order forfeiture of a motor vehicle. The judge was wrong.

In R v O'Brien, 2013 SCC 2 (17 January 2013) on a charge of uttering threats a mens rea element is the intention that the words intimidate or be taken seriously by the person spoken to. The defendant had said to his ex-girlfriend that he would kill her if she had an abortion, and the trial judge held the intent was not proved. Crown's appeal against acquittal dismissed.

R v Ryan, 2013 SCC 3 (18 January 2013) holds that in common law duress the threat must be made to encourage the defendant to commit the offence. Therefore duress was not available where the defendant counselled the murder of her abusive husband, relying on his conduct as threatening.

Proportionate confiscation of proceeds of crime

You can't read the dissent of Lord Phillips and Lord Reed in R v Waya [2012] UKSC 51 (14 November 2012) without marvelling at its brilliance. Nor can you then read the majority judgment of seven other members of the Court without thinking it too is pretty good.

All judges agreed [1]-[34], [82] that the Proceeds of Crime Act 2002[UK] had to be interpreted to avoid the making of a confiscation order that was disproportionate. However the minority concluded that no order should be made at this stage because any order would be relatively modest, while the majority ordered payment of £392,400.

The key difference, although there were others, was that the majority did not accept that the governing consideration on proportionality was what the minority termed the "real benefit" obtained by the defendant through the offending [26].

The facts were simple: the defendant had purchased a flat which fell into the high end of the property market in London, paying 40% of the purchase price with his honestly obtained money and 60% by funds secured by a mortgage that he obtained by a false representation as to his income.

The dishonesty was minor and was dealt with in separate criminal proceedings by a modest community-based sentence. It was unclear how the lender would have reacted if the truth had been known. There was no risk to the lender's funds because of the size of the defendant's contribution and the unlikelihood of a decline in that part of the property market. The only loss that might have been suffered arose from the higher rate of interest that the lender might have charged. At the time relevant to confiscation, about 5 years after purchase, the flat was worth more than double the purchase price and the mortgage had been discharged, including an early payment penalty paid from clean funds. Substituted financial arrangements, all judges agreed, were not relevant.

The minority, applying the Act, concluded that the amount of the order – before modification by the proportionality requirement – would have been the current value of the flat minus the current mortgage on it. This came to £987,400. However, applying its "real benefit" approach, the minority reasoned that what the defendant really obtained dishonestly was a loan on more favourable terms that might otherwise have been required, and it would have ordered that the case be remitted to the lower court for that amount to be calculated. However in view of the stress that the proceedings must have caused the defendant, the minority would have simply quashed the confiscation order.

The majority interpreted the Act differently and calculated the amount of benefit dishonestly obtained by the defendant as the percentage of the increase in the defendant's equity in the property that he had obtained dishonestly (60%), and this was £392,400. In summarising this reasoning I am ignoring a minor complication arising from some repayments from clean funds made before the discharge of the mortgage. The majority saw no reason to view an order for £392,400 as disproportionate.

It might be controversial to treat movements in the property market as if they were proceeds of the defendant's dishonesty. The causal question is interesting: the defendant's dishonesty caused him to be able to purchase a property, but did it cause him to be able to make a profit? Perhaps it did. But should it then only be regarded as a contributing cause, very minor compared to market forces?

The generally important part of this case is its application of s 3 of the Human Rights Act 1998 [UK] to read in the requirement that an order not be disproportionate (applying Ghaidan v Godin-Mendoza [2004] 2 AC 557, discussed here 6 February 2005). I mean 'generally important' in the sense of important for the interpretation of this Act, for criminal proceeds legislation differs in various jurisdictions, as mentioned here on 16 May 2008. But the judgments also illustrate how senior judges can disagree over what is proportionate and how a fairly straightforward Act can be applied differently to fairly simple facts. Perhaps the complexity of the law of property is inescapable, but it is surprising to see judges differ so markedly over what is proportionate.

Update: for information on the behind-the-scenes difficulties experienced by the judges in deciding this case, see the book review posted here on 17 April 2015.

A veiled attack on substantive fairness in Canada?

The substantive right to a fair trial must be distinguished from its procedural correlatives such as the right to confront witnesses and to present a defence. The procedural rights may be subject to balancing against competing rights, but the substantive right to a fair trial is regarded as absolute in some jurisdictions.

The Supreme Court of Canada has recently not distinguished procedural fairness from substantive fairness, and by a majority it has treated the apparently composite right to a fair trial as something that can be balanced against competing rights: R v NS, 2012 SCC 72 (20 December 2012).

The implications of the case extend far beyond its facts, which raised the issue of how a court should decide whether to permit a witness to wear a niqab (face covering). There is obviously a range of potential answers: always permit it (Abella J), never permit it (LeBel and Rothstein JJ), and sometimes permit it (McLachlin CJ, Deschamps, Fish and Cromwell JJ).

The majority held that if a right competed with the defendant's righs to confront witnesses and to present a defence, and if there was no way to give full effect to all these rights, there would then be a balancing. This would require some limitation of rights, perhaps but not necessarily on both sides.

In including the substantive fair trial right in this balancing exercise the majority have declined the opportunity to use it as the ultimate criterion. Contrasting views of the importance of substantive fairness are found in cases from other jurisdictions, not considered in this case: R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 (HL) (mentioned here on 4 September 2004, and see also the discussion of Randall v R (Cayman Islands) [2002] UKPC 19 and of other relevant cases here on 16 September 2010, R v Davis [2008] UKHL 36 noted here as the second entry for 19 June 2008, and the still-obscure position in Gäfgen v Germany [2010] ECHR 759 noted here on 25 June 2010.

NS appears to establish that in Canada the right to a substantively fair hearing is not absolute. The minority judgments illustrate arguments that now must be regarded as wrong. McLachlin CJ summarised her position for the majority [34]:

"... The question is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion ... ."

This assumes that the right to a fair trial may not outweigh freedom of religion. And at [46]:

"I have proposed that courts should deal with the conflict between rights in cases such as this by finding a just and appropriate balance between freedom of religion on the one hand and fair trial rights on the other. The result is that where a niqab is worn because of a sincerely held religious belief, a judge should order it removed if the witness wearing the niqab poses a serious risk to trial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."

The deleterious effects are the limitation on freedom of religion, the inhibition of complainants and the consequential escape of offenders from justice. Obviously those are hugely important considerations. The salutary effects are preventing harm to the fair trial interest and safeguarding the repute of the administration of justice. The need to find a balance between the deleterious effects and the salutary effects recognises that the salutary effects do not necessarily outweigh the deleterious effects.

It may be that when unfairness goes beyond procedural unfairness and becomes substantive unfairness, it will always outweigh the deleterious effects of requiring a competing right to yield. But that is not clearly stated as the ratio of this case. On its face the majority reasoning has an unpleasant "ends-justify-the-means" blemish.

Although this case is newsworthy for its decision about the wearing of niqabs and the place of religious expression in the courtroom, it has much wider implications. In a contest of competing rights, the majority judgment potentially diminishes the right to a fair hearing in Canada.

The obligation to select an impartial jury

Jury vetting was last week the subject of three decisions of the Supreme Court of Canada. All three inevitably focus on trial fairness.

R v Davey, 2012 SCC 75 (21 December 2012) concerns personal opinions sought by the Crown from police officers about the suitability of prospective jurors, recorded in an annotated list that was not disclosed to the defence, and a trial in which two of the chosen jurors had been marked as "good" and "ok".

Karakatsanis J for the Court observed that this case did not involve police access to any database or any police investigation. However she held there should be no systematic distribution of jury panel lists to police services for comment regarding the suitability of potential jurors [8]. State resources should not be used by the Crown to enable it to choose a jury that may be perceived to be favourable to the Crown. Targeted consultation with a limited number of individuals working on the case with the prosecution is acceptable if it is to discuss concerns as to partiality, eligibility or suitability of a prospective juror [9], but any information relevant to the selection process must be disclosed to the defence.

Where the information that should have been disclosed had not been disclosed, the question was whether there was a real possibility that the jury was not impartial or whether, had it been disclosed, a differently constituted jury would have been selected. If not, the further question was whether the circumstances created an appearance of unfairness such as to interfere with the administration of justice or such as to so offend the community's sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice [24], [54], [74].

The selection process must ensure an independent, impartial and competent jury [30], and neither party has the right to select a jury or a positive power to shape a jury.

Although there had been a breach of the disclosure requirement here, in the circumstances there was no unfairness and the appeal was dismissed. The reasoning is fact-dependent and the Court defers, with only a slight weakness appearing in [72] where mention is made of the defence not having used all its peremptory challenges.

An interesting and undecided point was what standard would be on the Crown if it had the burden of showing that the jury had been impartial or that there was no appearance of unfairness such as to amount to a miscarriage of justice [55, footnote 5]. Karakatsanis J thought it may be the balance of probabilities. Arguably there is no need for a further legal burden: on appeal the appellant has the legal burden and that should be that. But the point here is that a new issue – factual impartiality - is brought into play, as a sort of defence to the appeal. However you might well think that since the possibility that a different jury might have been chosen is not necessarily related to the real harm of a biased jury, it is inappropriate to make that a criterion for a successful appeal. Therefore it would be preferable to take the more conventional approach of requiring the appellant to succeed on either (i) establishing a real risk that the chosen jury was not impartial, or (ii) establishing the appearance of unfairness. No question of a burden on the Crown would then arise.

The second vetting case did involve use of a police database: R v Emms, 2012 SCC 74 (21 December 2012). Here Moldaver J delivered the judgment of the Court. Information obtained at the request of the prosecutor and not disclosed to the defence concerned whether prospective jurors had criminal convictions or were in other respects "disreputable persons". Although the Crown was entitled to have inquiries made for the purpose of checking eligibility to serve, which included absence of disqualifying convictions, or for other information to support challenge for cause, and was obliged to disclose that information to the defence, it was not entitled to have checks on the further question of whether a prospective juror might be disreputable. But if information on disrepute came to light it should be disclosed to the defence if the Crown considered it to be relevant to the jury selection process [48]. Here the appellant failed to establish that, had the information been disclosed, there was a reasonable possibility that a differently constituted jury would have been chosen [22]-[29]. Neither was the departure from what was, by the time of the trial, a required procedure, sufficient in the circumstances to amount to a serious interference with the administration of justice, or to offend the community's sense of fair play and decency to the extent of being a miscarriage of justice [43]-[49].

The third, and leading, decision (first in time and applied in Emms and Davey) is R v Yumnu, 2012 SCC 73 (21 December 2012). Moldaver J, for the Court, set out the fundamentals applicable to when police databases may be used in jury vetting. Nothing could do more harm to the criminal justice system than the Crown and the police joining forces to obtain a favourable jury [37]. The Crown has the responsibility, as an officer of the court, to ensure every defendant receives a fair trial [40]. Randomness and representativeness are two qualities looked for in juries, and checking that gives rise to an appearance of stereotyping through the use of peremptory challenges could be seen as incompatible with the Crown's responsibility [40]. The privacy of prospective jurors is also important [43], although there are countervailing interests in ensuring eligibility and impartiality [45]. Limited use of police databases is permissible to check for grounds for challenge for cause [50]-[51]. Sometimes those checks may reveal other relevant information. Any information that is relevant to jury selection (outside matters of public knowledge or feelings, hunches, suspicions, innuendo or other amorphous information [64]) must be disclosed to the defence [55], [63].

There is also a duty on defence counsel to disclose information where there is good reason to believe a potential juror may be ineligible or may not be impartial [66]-[67].

Importantly, jury selection is not a game and winning or losing are concepts that ought not to be associated with it. The aim is to obtain an impartial jury: "The jury does not belong to the parties; it belongs to the people." [71].

Attempts by one side or another to obtain a favourable jury are inimical to the right of every person who is charged with an offence to be tried by an independent and impartial tribunal [72].
In these kinds of cases the appellant must establish that the Crown did not disclose information that it should have disclosed, and that if disclosure had been made there is a reasonable possibility that the jury would have been differently constituted [75]. The point mentioned by Karakatsanis J in Davey above, about the Crown showing that nevertheless the jury was impartial, was left open for another day [76].

On the facts here the appellant failed to establish a real possibility that a differently constituted jury would have been selected [77]. And on the alternative ground of appearance of unfairness [79] what happened here was neither a serious interference with the administration of justice nor was it such an offence to the community's sense of fair play and decency that there was a miscarriage of justice [89].

Again one might object that the possibility that a different jury would have been selected is an inappropriate requirement: even if the defendant had known what the Crown knew about the juror, the defendant may have already run out of challenges at the critical moment.

This separation of two aspects of unfairness – actual unfairness and the appearance of unfairness – gives rise to an interesting interpretive question for those who will have to apply s 232 of the Criminal Procedure Act 2011 [NZ]. There, "an unfair trial" may be construed as including a trial that appears to have been unfair, although this is far from certain.

The Supreme Court of New Zealand has taken a rather more constrained approach to the Crown's disclosure obligations in relation to jury vetting: Gordon-Smith v R [2009] NZSC 20 (23 March 2009, noted here). The dissent of McGrath J in that case is in line, concerning what needs to be disclosed to the defence, with the Supreme Court of Canada's statement of the law. The majority however went so far as to give the impression there might be some justification for limiting trial fairness:

"[18] It is always important that there be no justified perception or real risk of unfairness in any respect, if that can be avoided consistently with other relevant features. The privacy and security of jurors is such a feature. ..." [emphases added]

But Gordon-Smith was decided in a torrid atmosphere of public unrest at the perceived and potential misuse of jury panel lists especially by unrepresented defendants.

This is not to say that the Supreme Court of Canada is not also capable of wobbling a bit when it comes to trial fairness for the defendant, as shall be seen when I come to discuss veiled witnesses. However as far as jury vetting goes, the cases invite discussion of when the court should react to procedures that, although improper, had no discernible effect on the result of a trial, and if reaction is appropriate, what remedy should be given to a defendant when those at fault are out of the court's reach.

A note on substantive trial fairness

An issue of trial fairness is raised if a judge fails to address an element of an offence. If an element is overlooked, but the evidence overwhelmingly proves that element, does it matter that the fact-finder did not make a finding on it?

The significance of the omission will need to be assessed in the circumstances of each case. Trial fairness is not simply a procedural matter. If it was, the answer would be the same in every case. But trial fairness has substantive meaning: the law must be accurately applied to facts determined impartially.

In R v Khawaja, 2012 SCC 69 (14 December 2012) an element of the offence had been overlooked, but the error did not affect trial fairness:

"[93] This is an exceptional result, appropriate in the exceptional circumstances of this case. Generally speaking, if an appellate court finds that the offence for which an appellant was convicted includes an additional essential element, fairness would require ordering a new or directed trial. In this particular case, however, this Court can be confident that the appellant suffered no prejudice deserving of a new trial only because the evidence on the additional element of the offence was overwhelming, as indeed the trial judge found, and it is plain that the appellant's strategy would not have changed had the element been recognized at trial."

A misunderstanding of this would be that the ends justified the means: if the person was obviously guilty the error could not affect the fairness of the trial. What the Court means here is that the error did not affect the impartial determination of the facts because the defendant would not have conducted his defence differently had the error not occurred, and the defendant was not deprived of a real chance of a more favourable outcome.

Bain, Binnie, Fisher, Bayes – how should judges reach conclusions?

Once again out little nation is divided over the Bain case and its consequences. The current controversy is over whether the report by retired Canadian Supreme Court Justice Ian Binnie should be accepted or whether its review by retired New Zealand High Court judge Dr Robert Fisher QC has cast doubt on its conclusions.

We have seen here recently how appellate judges on the same court can differ sharply over what conclusions can be drawn from the evidence in a case. Is there a right way to arrive at conclusions from facts?

In trials juries are given little guidance on how to reason, other than being told that the drawing of inferences is a process of using logic and common sense, something people do all the time in their daily lives. It is assumed that people have an innate ability to reach proper conclusions. This assumption must be correct. We tend to be right more often than we are wrong, but without examining why.

Judges have to give reasons for their decisions. The process of articulating reasons imposes a discipline on judicial thinking, and until that process is completed a judge may not know what conclusion is going to be reached. An echo of this is the instruction to jurors to keep an open mind while evidence is being given.

Bayesian analysis is useful in revealing or guarding against errors of logic when inferences are drawn from facts. Dr Fisher has used this in his report. This does not mean that Ian Binnie was wrong to not use it in his. Most people have no idea what Bayes' Theorem is and they infer correct conclusions without using it. The interesting question is whether Dr Fisher has revealed any error of logic that was sufficient to make Ian Binnie's conclusions wrong.

My assessment is that the only candidate for being an error of this significance is Dr Fisher's claim that Ian Binnie failed to consider the evidence cumulatively as opposed to by taking each item at a time. Ian Binnie has denied, in an email to the Minister of Justice that has been published, that he made this error.

It would be astonishing if Ian Binnie had made this mistake. Judges habitually stand back after evaluating the probative value of particular facts and look at the overall picture. That is done to enable a conclusion to be drawn from the combination of the probative values of the facts. This process is what is done instinctively when people exercise their judgment.

There are all kinds of influences, revealed by psychologists, which can cause people to make mistakes. A Bayesian approach to inference drawing can counteract those, but its best application requires extensive statistical information, far beyond what is usually available in court cases.

Nearly all judicial decisions are made only on the balance of probabilities. This standard recognises that we can seldom be certain we are right, and that in the interests of finality a decision on the balance of probability is good enough. Hugely important decisions are regularly made in the courts on that basis.

It is significant that Dr Fisher has not endeavoured to decide whether Ian Binnie's conclusions were right or wrong, but that he correctly restricted his report to Ian Binnie's method. Plainly, if Dr Fisher were to go further in a subsequent report, he would apply the Bayesian approach. But that should lead to the same conclusions that Ian Binnie reached unless radically inappropriate assessments of likelihood were made by Ian Binnie over critical facts to such an extent as to influence the result of considering the combined probative values of all the relevant facts.

I was surprised when reading Ian Binnie's report at how he treated the evidence of the luminol footprints. Depending on the length of those footprints, they could have removed the case from being an exercise in assessing probabilities and made this a case of direct evidence of innocence. That was recognised in the Privy Council hearing, as both sides agree. However Ian Binnie has been generous to the prosecution by recognising some doubt over the accuracy of the measurement made by the police scientist of the footprints on the carpet at the scene.

Whether the measurement could really have been susceptible to error to an extent sufficient to cast doubt on who left it there is a matter of judgment for those who have looked at the evidence that was given on this point.

In his conclusions on the footprint evidence at para 263 of his final report, Ian Binnie appears to accept a margin of error in the measurement carried out by the police scientist at the scene of about 5mm. Taking this at its most favourable to the prosecution, the print at the scene may have been 285mm, and David’s 300mm foot may leave a print that was 295mm. That is a difference of 1cm. In tests referred to at para 252 it was noted that carpet prints were never less than the actual foot length, so it seems extremely generous to the prosecution to accept that David may have left a print that was 295mm, especially if the police scientist’s notes did not record uncertainty or imprecision when the length was measured as 280mm. In any event, even a difference of 1cm (more likely 1.5cm, and even more likely greater than that) marks a clear difference between David and Robin’s footprints. The defence expert said that David’s foot could not have left the print found at the scene (again para 252), and Ian Binnie recommended without hesitation that these results be accepted (para 257).

At the measured 280mm the footprints were exact matches for prints that would be left by Robin Bain's foot.

It is in my opinion appropriate for a fact-finder to accept that David’s foot did not make these prints. The footprints are direct evidence of who the killer was.

The other evidence in the case is consistent with guilt or with innocence. Taken together, in my opinion, and remember I am for the moment ignoring the footprint evidence, the other evidence amounts to proof beyond reasonable doubt that David was guilty. In reaching that conclusion I use a Bayesian approach and assess probabilities on a commonsense basis as best as I can. That method is acceptable in the absence of more formal statistical data. This is why it was reasonable for the Robin Bain supporters to argue that David was guilty. It is also why the Court of Appeal was right in 2003 to conclude that on the evidence before it David was guilty. The footprint evidence in its final form was unknown then (see para 156 of the Court of Appeal’s judgment). The Privy Council corrected the Court of Appeal on the legal grounds of how an appellate court should deal with conviction appeals: not by coming to its own verdict but, if it finds an error that could have affected the fact finding at trial, by ordering a retrial if the prosecution wanted one. At the Privy Council the footprint evidence was approaching its final form and that is why the Board indicated that it was critical evidence, and both sides accepted that.

When the final form of the footprint evidence is included in the assessment it overwhelms the cumulative effect of the other evidence, and requires the reverse conclusion. Now, it can be concluded that what was unlikely did in fact happen. And now David’s innocence is proved beyond reasonable doubt. In Bayesian terms the likelihood ratio is so strongly in favour of the hypothesis that David is innocent that there is no real possibility that he is guilty.

If all the other evidence in the case proved guilt to a probability of 0.95, the footprint evidence would reduce that to 0.80; if all the other evidence in the case proved guilt to a probability of 0.99, the footprint evidence would reduce that to 0.96. So when I say there is "no real possibility that he is guilty" I do acknowledge that 0.96 may be proof beyond reasonable doubt for some people. The estimates of probabilities are used as follows. The first question is, what is the probability of getting these footprints, on the assumption that David is guilty? Experiments showed that it is most unlikely that David's foot could have left prints of that size, so this probability might be assessed as, say, 0.25, which seems rather generous to the prosecution. The second question is, what is the probability of getting these footprints, on the assumption that David is innocent? Because they fit well with the size of Robin's feet, this probability may be close to 1. The third question is, what is the ratio of these probabilities? This ratio, the likelihood ratio, reflects the probative value of the footprint evidence, and it is the probative value of the evidence for the prosecution case. It is, on these assessed figures, approximately 1 : 4. That is the assumption I make when I say that the footprint evidence reduces the probability of David being guilty. The assumption may be far too generous to the prosecution, because the probability that David's foot could have left a print of the size discovered could well be much less that 0.25: in none of the tests did his foot leave a print of that size. There is a possibility that a stretched sock may move under the sole of the foot so that its heel is closer to the toes, and so produce a shorter blood print than the foot wearing it, and I assume that the people who carried out the tests were alert to this.

More relevantly to a civil standard of proof, for a probability of David's guilt of 0.49, thus qualifying him for compensation, and for all the other evidence in the case suggesting a probability of guilt of 0.95, the probability of his foot leaving a print of the size found would need to be 0.05. That is, out of every 100 footprints David made, 5 would be of the size found at the scene. Given that there is no scientific evidence that he ever left the size of footprints found, it should seem reasonable to allow that he might do so no more than 5 times in a hundred. In science, measurements are routinely considered acceptable if they are in the plus or minus 5% range, although obviously greater accuracy is preferred. To disqualify himself for compensation he would need to leave footprints of the size found at least 6 times in every hundred footprints.

The frightening thing about cases of circumstantial evidence (that is, like this case without the footprint evidence) is that an item of direct evidence proving innocence might be missing. We are very fortunate that in the investigation of this case the police did not trample all over the scene, that they noticed the footprints, that they had them measured, and that they disclosed those measurements to the defence. On the critical evidence there is no reason to criticise the police.

Nor should the defence be criticised for not noticing the significance of the footprint evidence at the first trial. We are very fortunate that Mike Guest, David’s then lawyer, introduced Joe Karam to David, and that Joe sensed that David was innocent. We are fortunate that Joe launched his campaign and wrote his books and persisted with David’s cause.

My conclusion is that because David can prove innocence beyond reasonable doubt he is entitled to compensation without the need to show that anyone acted improperly.

[Update: on 2 August 2016 a second and final report was published. At [115] its author, the Hon Ian Callinan QC (formerly of the High Court of Australia), states: "... the question is not whether the case could or could not accommodate the presence of Mr Robin Bain's footprints, but the reliability and probative value of the evidence of the footprints themselves in the light of all the evidence." If a criticism of this is to be made it would be that it could mean that the question of what the measurements were is determined by all the evidence in the case. Indeed, Mr Callinan appears to consider evidence other than that of footprint measurements as part of his evaluation of the evidence of their length, and says at [328] that the footprints are "inconclusive". In my opinion it is necessary first to determine what the evidence is, before turning to the question of its probative value. Mr Callinan does not demonstrate why the footprint evidence does not have the importance that it was acknowledged to have at the Privy Council hearing. He neglects to get to grips with what the evidence is: the objective evidence is the experimental results obtained by Drs Walsh and "Sandilands" [Binnie sic, Sandiford], see Binnie at [248]-[252]. The range of prints obtained from a 300mm foot would be 288-310 (Walsh) or 300-315 (Sandiford). And the range for a 270mm foot would be 258-280 (Walsh). None of the results gave a print shorter than the foot by 15mm which is what would be needed on all the assumptions favourable to the Crown and allowing a range of error for the measurement at the scene of plus or minus 5mm. The conclusion should have been that David was innocent, certainly on the balance of probabilities. It is easy to find support in the circumstantial evidence for any conclusion, but the footprints were direct evidence of who the killer was.]